I am concerned that my wife might suddenly move back to the States with our US-born child, without my consent, although we are both “immigrants” to Israel, on a trial “Aliyah” in Israel, from the U.S.A. If she does, and I am forced to bring Hague Convention proceedings for the return of my abducted child to Israel , how will it be decided which country is “home” for our child – the States or Israel – and whether I will get a return order?

Firstly, the Hague Convention order you would be seeking would be to order the child back to the country of his/her habitual residence or the “home” country . As there is no definition of habitual residence in the convention itself , this concept is interpreted differently by different “Hague” countries. Secondly, the Hague proceedings requesting a return to the “Home” country actually take place in the country where the child is physically present – in your case, this would be the States. In Israel, the courts’ interpretation of habitual residence is child-based, although it also considers the parents’ last common intentions, but in the U.S.A, greater emphasis is given to parental intentions.

For example, in December 2013, a U.S. federal appeal court refused to return a child to New Zealand ruling that the minor had retained habitual residence in the United States despite actually living in New Zealand for three and a half years. The reason given was that the parents, both of whom were naturalized U.S. Citizens (the mother South African and the father a New Zealander) , had shared a common intention to live in America permanently before they separated in New Zealand, where they had been living only temporarily, prior to the unilateral removal of the child to the States, by the Mother.

In contrast, in Israel, courts hearing a request for a return order overseas, tend to concentrate on “facts on the ground” and the position from the child’s perspective. While they examine many factors, including parental intention, when deciding whether Israel, or the requesting State ,is the country of habitual residence, because the situationis viewed primaily from the children’s perspective, children can establish habitual residence relatively quickly, in Israel, if they attend school, and have established social connections etc. Therefore it is particularly important to act quickly in child abductions to Israel,to maximize the chances of a prompt return order.